Supreme Court reaffirms ancient right to liberty

The Supreme Court has reaffirmed, in a unanimous decision, the importance of the ancient common law writ of habeas corpus, human rights organisation JUSTICE has announced.

The English case involved Mr Rahmatullah, who was captured by UK forces in Iraq and handed over to US forces in 2004, in accordance with a Memorandum of Understanding between the UK and the US governing the transfer of prisoners. He was detained at Bagram Airbase in Afghanistan, where he continues to be held today.

The Court of Appeal granted a writ of habeas corpus in 2011, which required the Foreign Secretary to write to the US Government requesting information about his continued detention. Although the Court of Appeal discharged the writ after diplomatic exchanges between the UK and the US, the Supreme Court was asked by the Government to rule that the Court of Appeal had no jurisdiction to act at all.

The Court rejected the Government’s case, concluding that for the purposes of habeas corpus, the UK does not need to have physical custody of the person concerned. It is sufficient that there is material before the Court which supports the conclusion that is the UK has a reasonable prospect of securing release.

In this case, the international obligations of the UK under the Geneva Conventions and the terms of the Memoranda of Understanding between the UK and the US were sufficient to justify the issue of the writ by the Court of Appeal.

Had the Government’s case succeeded, habeas corpus could have become irrelevant for any persons transferred outside the direct custody of UK Government agencies, claims JUSTICE. It would have significantly reduced the power of UK courts to require full and effective justification when our Government has been involved in the detention of individuals, both at home and overseas.